JUDGMENT 1. - This criminal appeal under Section 374 Cr. RC. has been filed by accused appellant Nanu Ram against the judgment and order dated 10.11.1998 passed by the Additional Sessions Judge, Neem-ka-thana convicting the accused appellant under Section 304 IPC and sentencing him to undergo rigorous imprisonment for 7 years with a fine of Rs. 1000/-, in default thereof, to further undergo simple imprisonment for six months. 2. Briefly stated the facts of the prosecution case are that on 12.10.96 Phoola Ram lodged a report Ex.R8 at Police Station Thoi, district Sikar to the effect that Rajesh and Pooran aged 5 and 6 years respectively, are the residents of Kishanpura, Police Station Neem-ka-thana and their ailing parents were admitted in Thoi Hospital on 10.10.96. On 12.10.1996 at about 11 AM, both the children got fever, and on being asked for medicine, the accused appellant Nanu Ram, Class IV employee of the Hospital gave injections to both the child and immediately thereafter, they died. After death, the accused took both of them to their village Kishanpura in the vehicle of a Doctor. 3. On the basis of the above report, police registered a case under Section 304 IPC vide FIR Ex.R 13 and proceeded to investigate the case. During investigation, the Police arrested the accused appellant vide arrest memo Ex.R1, recovered the used ample of injection and 10 Lariago Injections kept in an Almirah of a room, at the instance of accused appellant vide memos Ex.P3 and R4 respectively and prepared the site plan, Ex.P.5. The police also got conducted the post mortem on the dead bodies of deceased Pooran and Ramesh and collected the post mortem reports Ex.P.lO and P.11. The police recorded the statements of witnesses and after completion of investigation, submitted a charge sheet against the accused appellant in the court of Judicial Magistrate, 1st Class, Neem-ka-thana, who in turn committed the case to the court of Sessions. 4. The case came to be tried by the learned Additions Sessions Judge, Neem-ka-thana. The learned Additional Sessions Judge after hearing arguments of both the sides, framed charge against the appellant under Section 304 IPC. The appellant denied the charge and claimed trial. 5. During trial, the prosecution, in support of its case, examined as many as 10 witnesses and exhibited some documents. Thereafter, the accused was examined under Section 313 Cr.RC. The learned Additional Sessions Judge after hearing arguments of both the sides, framed charge against the appellant under Section 304 IPC. The appellant denied the charge and claimed trial. 5. During trial, the prosecution, in support of its case, examined as many as 10 witnesses and exhibited some documents. Thereafter, the accused was examined under Section 313 Cr.RC. The accused in his defence examined DW 1 Jai Narain. On conclusion of trial, the learned trial court found the charge duly established against the appellant and accordingly. The accused was convicted and sentenced as aforesaid. 6. Feeling aggrieved by the aforesaid judgment of conviction and sentence, the appellant has preferred this appeal. 7. I have heard learned counsel for the parties and carefully gone through the judgment under appeal and the record of the case. 8. On scanning the prosecution evidence and examining the material on record, the first question that arises for consideration is, whether accused appellant Nanu Ram who, on the relevant date i.e. 12.10.1995 while working as Class IV employee in Thoi hospital in Sikar District, gave chloroquine injection to deceased Ramesh aged 5 years and deceased Pooran aged 6 years who were suffering from fever. 9. PW. 1 Om Prakash Sharma, Compounder who was a witness to the seizure of injection and site plan has been declared hostile. However, he has admitted that accused appellant was, at the relevant time, posted as Class IV employee in the Hospital at Thoi. Similarly,, PW 5 Dr. Om Prakash Jhirwal has also been declared hostile, but he too has admitted that appellant was working as Class IV employee in Thoi Hospital He also admitted that chloroquine injections were kept in OPD ward of the hospital. 10. PW 3 Phoola Ram, father of deceased Pooran has stated that about 9-10 months back, he took his ailing wife and son Mahendra to hospital for getting them admitted. He stated that PW 4 Banwari, his wife and their children were also with him. The doctor, after examining his wife and son Mahendra, got them admitted. Banwari and his wife were also admitted. He turther stated that on the next day his son Pooran and Banwaris son Ramesh got fever. Appellant Nanu Ram demanded Rs. 100/- as against fees. He paid Rs. 40/- and for rest of the amount, he stated that he will bring the same from his house. Banwari and his wife were also admitted. He turther stated that on the next day his son Pooran and Banwaris son Ramesh got fever. Appellant Nanu Ram demanded Rs. 100/- as against fees. He paid Rs. 40/- and for rest of the amount, he stated that he will bring the same from his house. He further stated that when he reached hospital, he saw Banwari returning home with both the children in the vehicle of the hospital. He saw the both the children had died. PW 4 Banwari has supported the statement of PW 3 Phoola Ram. He stated that he was sick and therefore, he along with his wife and son went to Thoi Hospital. PW 3 Phoola Ram, his wife and his son had also accompanied them. The witness stated that he and Mahendra S/O Phoola were got admitted in the hospital. On the day of his admission in the hospital, his son Ramesh and Pooran S/O Phoola Ram got fever. He stated that appellant Nanu Ram gave injections to both Ramesh and Pooran, which resulted into death of both children, he further stated that appellant, despite his refusal not to inject them, gave injection on the pretext that there would be no problem. 11. PW 7 Mst. Bhagwati W/o Banwari and mother of deceased Ramesh and PW8 Mst. Kela W/o Phoola and mother of deceased Pooran have supported the statements of PW 3 Phoola Ram and PW 4 Banwari. Pw 7 Mst. Bhagwati and PW 8 Mst. Kela have categorically deposed that Ramesh and Pooran got fever and when her husband asked the appellant to call the doctor or to give medicine after checking by the Compounder, the appellant replied that what the doctor will do and that he himself will give injections to the children and they will be all right. Thereafter, the appellant got the syringe filled with injection and injected the same to both the children. After injection, when both the children were taken to another room, they became nervous and within few minutes, they died. 12. Pw 6 Dr. Pramoa Kumar Garg who conducted post mortem on the dead bodies of two deceased has deposed that cause of death of both the boys was `syncope'. The doctor has deposed that injection marks were present on upper and outer qudrant of right gluteal region of both the deceased. The post mortem reports Ex. 12. Pw 6 Dr. Pramoa Kumar Garg who conducted post mortem on the dead bodies of two deceased has deposed that cause of death of both the boys was `syncope'. The doctor has deposed that injection marks were present on upper and outer qudrant of right gluteal region of both the deceased. The post mortem reports Ex. P10 and P11 also certify the presence of injection marks. 13. PW 9 Bhoma Ram, SHO recovered used Chloroquine phosphate injection IP Lariago 5 ml IV/IM and a plastic syringe having marks 1,2,3,4,5 M.l. Albert David, fixed with niddle at the instance of accused appellant, vide seizure memo Ex. P3. At the instance of appellant, the SHO Bhoma Ram also seized 10 chloroquine phosphate Injection IP Lariago (R) 5 ml lying in a old box made of paper kept in an almirah lying in injection room of the hospital at Thoi. 14. From the evidence of parents of the deceased coupled with the medical evidence as to the presence of, injection marks on the persons of two deceased as also the seizure of used injection and syringe, it can safely he held that accused appellant Nanu Ram was posted as Class IV employee in Thoi Hospital and that it was appellant Nanu Ram who injected chloroquine phosphate injection to both the deceased namely Pooran and Ramesh. The trial court, in my considered opinion has correctly arrived at a conclusion that it was accused Nanu Ram who at the relevant time, was posted as Class IV employee in Thoi Hospital and gave chloroquine injection to both the deceased. 15. Now I shall proceed to deal with the important question as to whether the chloroquine injection given by the accused appellant to both the deceased proved fatal and resulted into death of deceased Ramesh and Pooran ? 16. To proceed further, it would be appropriate to first refer to the post mortem report. Ex. R10 is the post mortem report of deceased Pooran prepared by the medical board consisting of three doctors, namely Dr. RK. Garg, Dr. R.R Yadav and Dr. S.C. Sharma. In the opinion of the medical board as given in the post mortem report, the mode of death was Syncope and the cause of Syncope could not be detected. Similar is the opinion of the medical board in the post mortem report Ex.P11 of deceased Pooran. RK. Garg, Dr. R.R Yadav and Dr. S.C. Sharma. In the opinion of the medical board as given in the post mortem report, the mode of death was Syncope and the cause of Syncope could not be detected. Similar is the opinion of the medical board in the post mortem report Ex.P11 of deceased Pooran. Both the reports mention that `Visceras and the soft tissue of the injection site are preserved and sent for chemical examination". However, it need be mentioned that there is no report of Forensic Science Laboratory on the record of the trial court. 17. PW 5 Dr. Om Prakash Jhirwal has stated in his cross examination that chloroquine injection of 5 ml if given to a boy of 5 years, it cannot result into his death. It also cannot result into death in case it is given to such a boy in high fever. 18. PW 6 Dr. RK. Garg, in his cross examination has opinion that cause of syncope can be malaria. 19. Having scrutinised the evidence, oral as well as documentary, I am of considered opinion that there in noting on record to conclude that death of both the deceased occurred as a result of chloroquine injection. On the contrary there is negative opinion of the doctor the even 5ml chloroquine injection cannot result into death, if it is injected to a boy of 5 years. 20. Undisputedly, Chloroquine is a antimalarial drug. To arrive at a just conclusion as to the effect of chloroquine drugs given to the children. I have also consulted various medical books, the children and infants are extremely susceptible to adverse effect from an overdose of the parenteral form of this drug and sudden deaths have been recorded after such administration. As per the medical terms, in no instance should the single dose of parenteral chloroquine HCI administered to infants of children exceed 5mg base per kg. In the instant case, the weight of both the deceased is not on the record. However, taking into consideration the age of the deceased i.e. 5 & 6 years, their weight can be considered to be 20 kg. It is thus evident that if the dose of chloroquine administered to a boy of the weight of about 20 kg. does not exceed 5 mg. base per kg., such does cannot be said to be harmful. 21. PW. It is thus evident that if the dose of chloroquine administered to a boy of the weight of about 20 kg. does not exceed 5 mg. base per kg., such does cannot be said to be harmful. 21. PW. 4 Banwari father of deceased Ramesh has categorically stated that accused appellant tilled in the syringe from a bottle and then injected the syringe to both the deceased. A perusal of Ex. R 3, seizure memo makes it crystal clear that the police has recovered the used chloroquine phosphate injection IP 5 ml. If the evidence of PW.4 Banwari and the seizure memo Ex. R3 are read together, it is evident that the dose of chloroquine injection given by the appellant to both the children was 2 & 1/2 mg. only and therefore, it cannot at all be said that there was overdosing of chloroquine. 22. One of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused caused the deaths of the persons alleged to have been killed. This means that before seeking to prove that the accused is the perpetrator of the offence, it must be established that homicidal death has been caused. In the instant case, the : evidence discussed above leads to draw inevitable conclusion that appellant was not the perpetrator of the offence. 23. Before parting with the judgment it must be observed that as to on what evidence the learned trial court has come to a finding that administering wrong injection resulted into death of both the deceased, inasmuch as there is : nothing on record to prove that the deceased died of chloroquine injection administered to them by the appellant and that in the opinion of the medical board, the cause of death was syncope and the cause of syncope could not be detected. In my considered opinion, there is no evidence on record to connect the accused appellant with the death of deceased Ramesh and Puran, except that appellant administered injection to them, for which neither he was legally competent nor had any authority. However, this is not the subject matter of this appeal. 24. The result of the above discussion in that this appeal must succeed. However, this is not the subject matter of this appeal. 24. The result of the above discussion in that this appeal must succeed. The appeal is accordingly allowed, the judgment dated 10.11.98 convicting and sentencing the accused appellant u/s.304 is set aside and the appellant is acquitted of the offence charged with. The appellant is in jail and he be released forthwith if not required in any other case.Appeal allowed. *******